Blog Traffic

April 11, 2006

Gender disparity plot thickens in Eighth Circuit

Yesterday in this post, I pondered whether gender might have played a role in the sentencing of a husband and wife convicted at trial of a series of mail fraud and bank fraud offenses. In US vs. Bistrup, the husband (who was clearly far more involved in the fraud scheme than the wife) received a sentence of 188 months, which was the very top of his applicable guideline guideline range; the wife was given only two years' probation despite facing a guideline range of 37-46 months. Notably, the government did not appeal the wife's below-guideline sentence.

Today, another Eighth Circuit decision has me thinking that prosecutors may be responsible for a gendered skew in sentencing. In US vs. Givens, No. 05-1711 (8th Cir. Apr. 11, 2006) (available here), the (male) defendant pled guilty to one count of bank fraud and faced a guideline range of 24-30 months. The district court, following the probation officer's recommendation, ordered one year of house arrest, five years supervised release, community service, and restitution of over $1.2 million. Nevertheless, the prosecutors decided to appeal this sentence, and the Eighth Circuit reverses the sentence saying that "the district court abused its discretion in departing so drastically from the calculated guidelines range."

In Givens, the Eighth Circuit concludes in this way:

In this case the district court gave significant weight to Givens' history and characteristics and showed a great deal of sympathy toward him. The court gave too much weight to these factors and not enough to the other portions of section 3553(a). The "time-served" plus house arrest sentence does not properly consider Congress's desire to avoid unwarranted sentencing disparities and the brevity of the sentence fails to reflect the seriousness of the offense, promote respect for the law or provide just punishment. 18 U.S.C. § 3553(a)(1)(A), (6).

I encourage everyone who thinks the federal sentencing system does a good job achieving uniformity to compare what happened to Mrs. Bistrup and Mr. Givens. Mrs. Bistrup gets merely probation after being convicted of multiple fraud counts at trial and facing a guideline range of 37-46 months; meanwhile, Mr. Given pleads guilty, faces a lower guideline range, but the Eighth Circuit rules that a year of house arrest, restitution of over $1.2 million, and additional sanctions are too lenient. Hmmm....

Comments

I elaborated on this in the comments to the Bistrup post in greater detail, but it's an important enough point to raise here too:

It's not clear that Nancy Bistrup's guidelines range was 37-46 months; that's just what the government had advocated as a range.

(Of course, guidelines ranges are as subject to gender-based manipulation by both judges and prosecutors as non-guidelines sentences are. My point is just that the Givens/Bistrup range comparison may be invalid...)

Posted by: David Krinsky | Apr 11, 2006 2:38:24 PM

What is fair for the gander is not fair for the goose.
The largest disparity in sentencing occurs in cases where one defendant pleads guilty while the next goes to trial, for you must pay rent on the courthouse.
Nancy Bistrup required the government to prove she was guilty and then went home, while Mr. Givens admitted his crime to the bank, pled guilty and attempted restitution.
The Eighth Circuit found the district court unreasonable in giving too much weight to some factors, “In this case the district court gave significant weight to Givens' history and
characteristics and showed a great deal of sympathy toward him. The court gave too
much weight to these factors and not enough to the other portions of section 3553(a).
The "time-served" plus house arrest sentence does not properly consider Congress's
desire to avoid unwarranted sentencing disparities and the brevity of the sentence fails
to reflect the seriousness of the offense, promote respect for the law or provide just
punishment. 18 U.S.C. § 3553(a)(1)(A), (6).”
When we compare the “seriousness of the offense”, Nancy Bistrup committed or at least aided in committing fraud on individuals purported to be her friends, while Givens committed fraud on the Bank. The “promote respect for the law” aspect tells women they can go along with their husband’s deceit, spend the money will get probation; while Givens sentence, whether 2 years in prison or house arrest, “promotes little of nothing” for 2 years in prison is hardly a deterrent when the statutory maximum of 30 years for fraud didn’t stop Givens or Bistrup.
And finally, “provide for just punishment”; where both amounts for Nancy and Givens was approximately 1 million dollars, Nancy went to trial and was convicted of multiple counts, while Givens admitted his crime; both received sympathy from the probation officer and judge, but the prosecutors have different opinions of “just punishment”. What is fair for the gander is not fair for the goose.
The Eighth Circuit has agreed and/or dissented with every other circuit in so many ways that controlling precedent appears as elusive as immigration control. I don’t fault the Eighth Circuit so much as the Supreme Court, for they had the chance early on to stop the Guidelines before 20 years of unconstitutional sentencing had occurred, but chose to watch an experiment with prisoners as the lab mice, and until the Supremes get out of legislating and declare laws either constitutional or unconstitutional, lower courts are left to follow a bouncing ball on a cobbled street.